Fatwa No : 82847

Wife seeking divorce from jailed husband

Fatwa Date : Safar 21, 1422 / 14-5-2001

Question

I would like to know the Islamic legalities of a Faskh divorce sought by the woman in the case her husband is being held in prison.

Answer

Praise be to Allah, the Lord of the Worlds; and blessings and peace be upon our Prophet Muhammad and upon all his Family and Companions. The presence of the husband is an obligatory condition for the Khula to take place. On the other hand the woman is not supposed to ask for Khulu (divorce caused by the woman) unless there is a sound reason to do that like the husband refusing (willingly and voluntarily) to provide the woman with her rights. So, if the man is imprisoned, he does not act freely. The majority of the scholars believe that if the woman asks to be separated from her imprisoned husband, it is unlawful to separate them, no matter how long her husband stays in prison. The Malikite School of Fiqh opts for the lawfulness of separating them if the wife asks for the divorce and claims to fear being harmed provided that the husband spends at least a year in prison. We believe that the opinion of the Malikite is closer to Sharia's aim which is to attain benefits and ward off blight. So, this rule can be applied if the woman proves that she is harmed by the continuation of this marriage. For instance, if the woman whose husband is imprisoned can not stay without intimate conjugal relationships and if she fears temptations, then the Qadi, Muslim judge, can separate her from her husband if she asks for that and if the Qadi finds it necessary. But if the woman is not harmed by this situation, her husband's imprisonment, it is more appropriate for her to be patient and seek reward from Allah for that and wait until Allah gives a way out for her husband. It is narrated that the Prophet said: "Any woman who seeks divorce from her husband without being harmed in any way the smell of Paradise is forbidden for her".Allah knows best.